[00:00:02] Speaker 02:
Case number 14-7009, David Sickle and L. Appellant v. Torres, Advanced Enterprise Solutions, LLC, also known as Torres AS, LLC, and Spattoros.

[00:00:14] Speaker 02:
Mr. Block for the Appellant, Ms.

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Hirsch for the Appellees.

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Good morning.

[00:00:47] Speaker 01:
Good morning, Your Honors.

[00:00:48] Speaker 01:
I'm Scott Block.

[00:00:50] Speaker 01:
I represent David Sickle and Matthew Elliott, the plaintiffs.

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May it please the Court, my clients serve their country honorably in two theaters of war as contractors working in support of the United States military.

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Mr. Sickle was a decorated Navy medic for 27 years, and then after that, for about a decade, worked for various large contracting companies in both Afghanistan and Iraq as medics on embassies and other forward operating bases as he worked on here.

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Mr. Elliott is a skilled cattle master who has his own company that serves local law enforcement as well as the federal government in training canine units and bomb-sniffing dogs.

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If my clients had been fired, as they were in this case, and there had been no back injury of Mr. Elliott at Ford Operating Base Shield in Iraq, they would simply have a breach of contract claim that their terminations from their jobs in Iraq was against the backdrop of an injury on the job in no way implicates the remedies of the Defense Base Act, or DBA, as has been asserted in this case by the defendants and then by the district court.

[00:02:06] Speaker 04:
So you rely on some language in our decision in BRIC in terms of independent claims.

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Your counsel on the other side reads that same language quite differently.

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Your response is simply to repeat your original point, but I suppose

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The question is whether the way these preemption statutes have been interpreted as quid pro quo, it's almost a hydro-headed type preemption.

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And as I read Brink, it was offering the possibility

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for those two claims to go forward, because they were not interrelated in any way to an injury on or because of employment.

[00:03:22] Speaker 01:
I think you're right, Your Honor.

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It is higher headed.

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But I think we have to drill down and look at the facts and bring.

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There were six cases that the court allowed to survive and remanded.

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The three of them were ADA cases, Americans with Disabilities Act cases, and those necessarily are intertwined with an injury on the job.

[00:03:43] Speaker 04:
Well, were they, did they survive on more than a remand in connection with why the district court did not allow an amendment to the complaint?

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That's correct, but it was clearly the law.

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So I don't think that really helps you.

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It's the other two.

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plaintiffs.

[00:04:07] Speaker 01:
Well, there were three, three others.

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Well, to which the court specifically referred the woman who was running the nursing home and she had a separate contract to get certain services that she didn't get.

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And then, uh, the assault that occurred

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one of the male plaintiffs.

[00:04:33] Speaker 01:
Ron Bell, that's correct, but you had another assault claim, Christine Holguin Luge.

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Two or three.

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Completely separate is what I'm trying to get from

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any injury arising on or in connection with?

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That's what you've got to overcome, don't you?

[00:04:52] Speaker 01:
Well, they weren't completely separate.

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Ron Bell had an injury on the job.

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He had an injury on PTSD.

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He claimed PTSD.

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We sent the information to KBR.

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They sent two goons out.

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What was the context of the assault?

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They sent two goons out to threaten him about his PTSD claim.

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So your client, you think,

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falls within that realm?

[00:05:12] Speaker 01:
Absolutely.

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They were threatened and actually terminated for not recanting an injury report on the job, as well as having an injury at all, even though he hadn't made a formal claim yet, having impliedly asserted that he had a claim on the job.

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In addition to that, the contract claim in Brink was a contract with CNA Insurance to help Daniel Brink

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who had the DBA injury with his benefits.

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It was all about the DBA claim, but it arose independently because there was an independent contract claim that didn't depend on there being an injury on the job to assert the claim.

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It's not within the DBA because if you look at the text... When you say there was an independent contract, what was it?

[00:06:02] Speaker 01:
Well, this nurse case manager, Nikki Poole, was hired to help him with... We're not talking about your case.

[00:06:09] Speaker 01:
Oh, we have an independent contract with the employer.

[00:06:13] Speaker 04:
I know.

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Your client was hired for one year and then a second year.

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That Mr. Sickle was and Mr. Elliott had a one year.

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In connection with... I'm sorry?

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In being this medic in connection with his subcontractor.

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Right?

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Those are the only two contracts.

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Those are the two contracts.

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That's correct.

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In connection with his employment.

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Right.

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So those are contract claims.

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They don't depend on there being an injury on the job to have a contract with the employer.

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And the Department of Labor and the Benefits Review Board, that is the appellate court essentially right across the street here, for those cases has held that the administrative law judge and people within the Department of Labor are powerless to make rulings on breach of contract issues.

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Powerless.

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And we've cited that Machado case in our briefs.

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This case arises out of a breach of contract and wrongful discharge.

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breaches in the contract are clear.

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They have to give written notice of termination for cause of material breaches, as the terminology in section 7.2.

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They didn't do it.

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My clients have rights to sue for damages under contract law.

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And we also have a claim for breach of the covenant of good faith and fair dealing.

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These are common law claims that are not foreclosed by the Defense Base Act or the Longshore Act.

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Part of your contract claim is an absence of notice.

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So I could see how, in theory, that would be independent of what's bound up in the retaliation.

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But then it sounds like part of your state law actions are completely bound up with the retaliation allegation under 948A.

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And as to those under Brink, it's hard to see how those claims can go forward in the wake of a decision in Brink that said that if something's bound up in the remedial scheme under the DBA slash Longshore Act, then it's

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preempted by virtue of the exclusivity provisions?

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Well, I believe that that's not the holding in break because 948A was not specifically essential to that decision.

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And it is clear that this is not an exclusive or preemptive

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fully preemptive scheme, it is very limited by its very terms.

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If you look at the language of 948A, it only applies to someone who testified or is about to testify about an actual proceeding before the Department of Labor.

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That's how the Labor Department interprets that statute.

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Have to have a claim filed.

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You brought a 948A claim, right?

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No.

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There's not a 948A claim in the complaint?

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Oh, in this complaint?

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Yeah.

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I thought you meant before the Department of Labor.

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No, not as such.

[00:09:00] Speaker 04:
Isn't Council on 948A?

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That is the supporting statute for public policy purposes, but it's not a claim under the statute.

[00:09:08] Speaker 01:
We're not proceeding under the federal law.

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We're using that federal law as a basis for public policy wrongful discharges.

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District of Columbia law is unlike some other states.

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that you can base your own?

[00:09:22] Speaker 00:
I'm not understanding because it sounds like you're saying I must be missing something because it sounds like you're saying at the same time 948A we either have a claim or it supports a claim I'm not sure I understand the difference but we either have a claim or it supports a claim that we're bringing but then on the other hand 948A doesn't cover anything.

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And it's I don't understand how you can make a distinction.

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I make a distinction here, Your Honor, between bringing an administrative claim for the Department of Labor under Section 948A, having a we call it a 948A proceeding.

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Didn't do that.

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That's not what this case is.

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This case is wrongful discharge.

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There are two separate counts.

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One of them is retaliatory discharge based on public policy.

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The District of Columbia allows you to rely upon a federal statute for your public policy.

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The public policy means we don't like people to be wrongfully discharged for claiming injuries.

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So that is the distinction.

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Just because we invoke the statute as the basis for the public policy does not mean we're proceeding under 948A and believe that it was applicable and binding in this case before the Department of Labor.

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Because by its very terms, it's not.

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Mr. Sickle was not testifying, and he wasn't about to testify.

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Mr. Elliott had not filed a claim, and he was not qualified to do the functions of the job.

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And therefore, he cannot fall within 948A.

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He's not allowed to.

[00:10:41] Speaker 00:
But it's still, even though your own people don't fall within 948A at all, 948A still is the support for your public policy claim?

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One of the claims, yes.

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There's one count for it.

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How can it be support for a public policy claim if the statute doesn't even cover it?

[00:10:59] Speaker 01:
Because Congress put forth a statute that expressed a policy not to fire people who have injuries on the job.

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That's why.

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Even though it didn't fall within the express way in which you can access it before the Department of Labor, you can certainly invoke it as evidence of the public policy of the United States.

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That's the difference.

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And if you look again, 948A is not within the exclusive remedy provision.

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The exclusive remedy provision of Longshore Act and the DBA, which is not an additional exclusive remedy provision, it only applies to workers' compensation in the states.

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The exclusive writing provision under 905A says that this is an exclusive remedy, i.e.

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the medical benefits and temporary total disability and permanent disability you might be entitled to is exclusive on account of the injury on the job.

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in the course and scope if you're employed.

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Not exclusive for any other items we might have appearing in this act having to do with other items like your job or back pay for retaliation.

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The exclusive remedy only pertains to injuries on the job and that is the scope of the exclusive remedy as interpreted by all the case law.

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And proof of this is to be found in all the cases we cited where the courts allow other claims to go forward in addition to the DBA and Longshore Act, such as ADA, Title VII, disability claims under Social Security, private disability insurance claims, breach of contract, intentional infliction of mental and emotional distress, intentional torts, deliberate intent to injure.

[00:12:34] Speaker 01:
There are so many that the exceptions create a whole new area of law.

[00:12:39] Speaker 04:
What about our decision in Hill?

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In Hall.

[00:12:42] Speaker 01:
Oh, Hall.

[00:12:44] Speaker 01:
Well, Hall, again, Brink, we come back to Brink.

[00:12:47] Speaker 04:
No, I'm at Hall.

[00:12:49] Speaker 01:
No, I know, but I'm saying what Brink said about Hall.

[00:12:52] Speaker 04:
It quoted Hall.

[00:12:53] Speaker 01:
Right.

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We note, this is the Brink Court talking, we note as the appellees acknowledge that Hall does not preclude individual appellants from pursuing claims that arise independently of an entitlement to benefits under the Longshore Act.

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And then it goes into such as common-law assault, breach of contract, et cetera.

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And of course, it doesn't, because the act itself tells you what is exclusive.

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Only injuries on the job and the benefits that you can get in the Longshore Act.

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And Hall was all about foreclosing bad-faith claims for administration of benefits.

[00:13:27] Speaker 04:
It extended that.

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Do you have a copy of Grink in front of you or Hall in front of you?

[00:13:32] Speaker 01:
I don't have it.

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In any event, you're referencing Grink, which is talking about Hall.

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And it says all the tort claims, including intentional tort claims, fall within the statutory exclusivity provisions.

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Now, you may disagree with this court's interpretation of the statutory text, but that is the interpretation we have adopted, is it not?

[00:14:09] Speaker 01:
Well, I would disagree with that.

[00:14:12] Speaker 01:
Disagree with what?

[00:14:13] Speaker 01:
I'm sorry?

[00:14:14] Speaker 04:
Disagree with what?

[00:14:16] Speaker 01:
The interpretation of Hall as foreclosing all intentional torts.

[00:14:20] Speaker 01:
Hall itself cited to the case law that preceded it that found that if there's a genuine intentional tort, District of Columbia federal precedent, if there's a genuine intentional tort, i.e.

[00:14:33] Speaker 01:
a deliberate intent to injure,

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as opposed to bad faith claims.

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And that's the distinction that Hall was trying to make.

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And at the very end of Hall, you'll note that they do say, but see, citing to the Martin and Atkinson exceptions.

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So they don't foreclose that there's any other kind of claim that can be brought.

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But when it comes to the injury on the job, Hall is very restrictive.

[00:14:56] Speaker 01:
I will agree with that.

[00:14:57] Speaker 01:
But Brink clarifies it and says, we don't mean that if it's an independent cause of action that doesn't depend on there being an injury on the job to have it.

[00:15:05] Speaker 01:
You don't have to have an injury on the job.

[00:15:07] Speaker 00:
Now, one thing we know from Brink is that it's not just limited to injury on the job, because it also covers the administration of benefits that arise from injuries on the job, right?

[00:15:19] Speaker 01:
Right, but it determined that it was dependent on the injury on the job to have those benefits.

[00:15:23] Speaker 01:
It's all part of the scheme of the Department of Labor.

[00:15:25] Speaker 00:
Yeah, my point is simply that

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It would be one thing to say that preemption is limited to injuries on the job.

[00:15:33] Speaker 00:
We already know under BRINK that it covers up a number more broad than that.

[00:15:38] Speaker 00:
I take it your argument is that, well, it might cover up a number more broad than that.

[00:15:41] Speaker 00:
That's intimately related to administration and benefits, but it doesn't go so far as to cover retaliation.

[00:15:48] Speaker 01:
Right, or all the other case law that, you know, that I cited to you, ADA, Title VII, Social Security Disability Benefits, Third Party Actions, Jones Act.

[00:15:56] Speaker 01:
I mean, the list is endless of the claims you can bring while also having a work-related claim under Longshore or ADA.

[00:16:03] Speaker 00:
Well, it's obviously true that you can bring state law claims that are about the administration of benefits or – right, because that's what – that was Brink.

[00:16:12] Speaker 00:
So there are some state, you can style in the state law claims, but if there's state law claims that ultimately are about the administration of benefits, then they're out under the exclusivity provisions.

[00:16:23] Speaker 00:
That's what Brink tells us.

[00:16:24] Speaker 01:
Of course, but that doesn't foreclose other causes of action.

[00:16:28] Speaker 00:
So it's not just the fact that it's a state law – it's not just the fact that it's a breach of contract claim.

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It's not just the fact that it's an intentional tort claim.

[00:16:34] Speaker 00:
It has – you have to look to see what kind of breach of contract claim it is or what kind of intentional tort claim it is to decide whether it's sufficiently bound up in the exclusivity – Right.

[00:16:43] Speaker 01:
If you're trying to redress a bad-faith claim as some independent tort or independent contract claim, that's not going to work.

[00:16:51] Speaker 01:
Frank is clear about that.

[00:16:52] Speaker ?:
Right.

[00:16:53] Speaker 01:
So I'm going to reserve some time for rebuttal, but because there was no administrative remedy here that claims were required to pursue, and indeed they could pursue, and because their claims are not preempted because they are contract claims and are outside the ambit of the DBA longshore exclusivity, the court should reverse and remand for a trial on the merits.

[00:17:13] Speaker 04:
All right.

[00:17:14] Speaker 04:
Why don't we hear from counsel for our police?

[00:17:16] Speaker 04:
I'll give you a couple of minutes.

[00:17:24] Speaker 03:
Good morning, Your Honors.

[00:17:25] Speaker 03:
I'm Rachel Hirsch.

[00:17:26] Speaker 03:
I am counsel for Scott Torres and Torres Advanced Enterprises LLC.

[00:17:30] Speaker 03:
May it please the court.

[00:17:32] Speaker 03:
I think to start, Judge Rogers, you touched upon what the theme of this case is.

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Why are we here?

[00:17:36] Speaker 03:
How is this case different from the decision in Brink?

[00:17:39] Speaker 03:
And we would submit that it's not any different.

[00:17:41] Speaker 03:
In fact, both cases were presented by the same counsel, were drafted at the same time, and involved the same claims.

[00:17:48] Speaker 03:
The Brink case was the second amended complaint, which is the operative complaint in that case, was actually filed two weeks after the first amended complaint was filed in this case.

[00:17:57] Speaker 03:
So it's not like counsel had the benefit of the Brink's decision and it was able to redraft this complaint to make it cure the deficiencies that were present in Brink.

[00:18:06] Speaker 03:
In the same case, there's no difference here.

[00:18:08] Speaker 03:
There's nothing that militates a different decision.

[00:18:11] Speaker 03:
Why?

[00:18:12] Speaker 03:
Because all the claims in this case arise from the DBA injury.

[00:18:17] Speaker 03:
Now, appellants may want to take the contrary position here, which Judge Brown Jackson recognized in her opinion as being nonsensical, that the claims don't arise under the DBA.

[00:18:27] Speaker 03:
But it's very clear from looking at the language of the complaint itself that this is a DBA claim.

[00:18:32] Speaker 03:
In fact, from the very first page of the complaint, paragraph 2, it says, these actions arise from actions taken by the defendants in discharging the plaintiffs for exercising their rights under the DBA and the Longshore Harbor Workmen's Compensation Act.

[00:18:49] Speaker 03:
Every count in the complaint.

[00:18:50] Speaker 05:
Could Mr. Sickle have filed a claim?

[00:18:52] Speaker 03:
I'm sorry?

[00:18:52] Speaker 05:
Could Mr. Sickle have filed a claim?

[00:18:55] Speaker 03:
Separately from this?

[00:18:56] Speaker 03:
Could he just all by himself have filed a claim?

[00:18:59] Speaker 03:
He could have filed a claim on the DBA, for sure, because he

[00:19:03] Speaker 03:
with the Department of Labor.

[00:19:04] Speaker 05:
On what basis?

[00:19:08] Speaker 03:
Because he provided a report that was used to support the filing of the report.

[00:19:12] Speaker 03:
The provision in the DBA protects doing that.

[00:19:15] Speaker 05:
That's section 948A.

[00:19:17] Speaker 05:
948A applies to testifying in proceedings before the board.

[00:19:21] Speaker 05:
The complaint itself, if you look at the allegations of the complaint.

[00:19:23] Speaker 05:
I know what the complaint says.

[00:19:24] Speaker 05:
What I'm saying is it's a matter of statutory law.

[00:19:28] Speaker 05:
There's no basis for Mr. Sickle to have filed a complaint.

[00:19:32] Speaker 03:
I would disagree, Your Honor, because if we look at this remedial statute, we have to construe it liberally, and we can't have it.

[00:19:38] Speaker 05:
How liberally?

[00:19:39] Speaker 05:
How liberally am I supposed to construe, testify, planning to testify in a proceeding before the board?

[00:19:45] Speaker 05:
You want me to construe that to mean actually doing anything related to a claim?

[00:19:51] Speaker 05:
Well, he filed a report that was attached as an affidavit or as a... But it wasn't remotely close to testifying in a proceeding before the board.

[00:19:58] Speaker 03:
Well, the statute itself doesn't say it has to be oral testimony, it's us testifying, we're about to testify, which he did.

[00:20:04] Speaker 03:
He filed a report which was sent to, with respect to the U.S.

[00:20:08] Speaker 03:
in May, and as we know from the complaint allegations of the complaint, Mr. Elliott had actually filed his DBA claim

[00:20:15] Speaker 05:
sometime in between April 30th when he returned home and May 9th when he... There's lots of... Congress has written lots of anti-retaliation provisions and most of them are written much more broadly to encompass exactly the type of thing that Mr. Sickle did.

[00:20:29] Speaker 05:
And so we have to respect the fact that Congress used distinctly narrower language here.

[00:20:34] Speaker 05:
And he wrote a report.

[00:20:36] Speaker 05:
Is that report under both?

[00:20:39] Speaker 03:
Your Honor, we don't have the details from the complaint of whether it was unearthed, but the complaint itself fashions this as a DBA claim.

[00:20:45] Speaker 03:
It says that Mr. Sickle is subject to the DBA.

[00:20:49] Speaker 05:
If we look at the very first count- I understand what the complaint says, but it has separate claims as well by Mr. Sickle involving contract.

[00:20:56] Speaker 05:
I'm trying to take issue with your first point, which was that Mr. Sickle at least had any basis whatsoever for proceeding under this statutory scheme.

[00:21:06] Speaker 03:
Well, again, I would go back to that.

[00:21:08] Speaker 03:
We would submit that the separate counts are not actually separate.

[00:21:10] Speaker 03:
They all have a direct nexus to the retaliatory discharge claim.

[00:21:16] Speaker 03:
The language in the complaint talks about the fact that the breaches occurred.

[00:21:20] Speaker 03:
There are many breaches that are listed in the breach of contract claim.

[00:21:23] Speaker 03:
We're not actually sure if it's a pure contract claim or a tort claim.

[00:21:26] Speaker 03:
In fact, it includes language such as was in the language in Count 3 of the Brinkham Plain that was dismissed for bad faith and tortious breach of covenant of good faith and fair dealing.

[00:21:36] Speaker 03:
The reason why it was bashed in that way, of course, is because if it was a pure contract claim and the claim arose from breach of contract, under the contract that Mr. Sickle entered into with Taurus, he would have had to bring that claim in the Eastern District of Virginia.

[00:21:51] Speaker 05:
So the reason why...

[00:22:00] Speaker 03:
Right, I'm not making the venue objection now, Your Honor.

[00:22:02] Speaker 03:
I'm saying the reason why it was fashioned that way was on purpose.

[00:22:04] Speaker 03:
It was intentional.

[00:22:06] Speaker 03:
In the merits of our argument, which the court did not reach, having found that the DBA preempts the common law claims, we did make the argument that they didn't allege a breach of contract.

[00:22:16] Speaker 03:
We don't even know that there is a breach of contract or if it's a tortious breach.

[00:22:20] Speaker 03:
We're not sure what it's saying.

[00:22:21] Speaker 03:
It's not our position or the court's position to step into the shoes of the lawyer and say, this is what you meant to say.

[00:22:27] Speaker 03:
We can only take reasonable inferences.

[00:22:29] Speaker 03:
Really?

[00:22:29] Speaker 05:
That Mr Sickle entered into a brand new contract with your client after the injury in this case.

[00:22:39] Speaker 05:
Correct.

[00:22:39] Speaker 05:
First time done.

[00:22:40] Speaker 05:
Had he already submitted this letter before that?

[00:22:43] Speaker 05:
He had, according to the complaint, so he was a whole contract and he alleges was breached as one that completely post states the events.

[00:22:51] Speaker 05:
didn't rise to the longshore act.

[00:22:54] Speaker 05:
He's hacked.

[00:22:55] Speaker 03:
Correct, but the retaliatory, the retaliation that they alleged after he entered into that contract, and it harkens back to the fact that he had done that because they retaliated against him allegedly because he had filed this report.

[00:23:09] Speaker 03:
The defense had taken the position that the report was filed falsely and it was a false claim, and that's why he was terminated, and not because they were trying to intimidate him to recount the report as he alleged.

[00:23:21] Speaker 03:
But the intimidation that is alleged harkens back to the DBA claim.

[00:23:25] Speaker 03:
There wouldn't have been intimidation but for the fact that Mr. Sickle filed this report that was used as testimony.

[00:23:31] Speaker 03:
It was used as testimony, ma'am.

[00:23:34] Speaker 03:
in the DBA claim that was filed in D.C.

[00:23:37] Speaker 05:
by Mr. Elliott.

[00:23:38] Speaker 05:
Yes, Your Honor.

[00:23:41] Speaker 03:
I think the complaint itself says that it was faxed to Mr. Elliott during that time of May and the fax report actually... That was in a D.C.

[00:23:51] Speaker 05:
court proceeding, not a labor court proceeding.

[00:23:54] Speaker 03:
I think it was a labor work proceeding, as far as I understand.

[00:23:59] Speaker 03:
I'm not sure from the facts of the complaint, otherwise.

[00:24:01] Speaker 03:
They don't give us detail about where the DBA claim occurred, except that it was filed in DC, we're assuming, in front of the Department of Labor.

[00:24:10] Speaker 03:
And actually, it's a correct assumption to make, because they say that Mr. Elliott actually received DBA benefits.

[00:24:16] Speaker 03:
And given the fact that the Department of Labor is empowered to do so, we can assume that that's where it was filed.

[00:24:23] Speaker 05:
I have just a question for you as well.

[00:24:25] Speaker 05:
I know the statutes provide that if a claim has been adjudicated to have been falsely filed, then the employer can fire somebody.

[00:24:39] Speaker 05:
Where is that adjudication supposed to take place?

[00:24:41] Speaker 05:
Does it take place before the Department of Labor, or are employers supposed to get that adjudication?

[00:24:50] Speaker 03:
To clarify, Your Honor, are you referring to 948A that talks about false reports?

[00:24:54] Speaker 03:
Yes.

[00:24:55] Speaker 03:
I believe that's supposed to occur before the Department of Labor as well.

[00:24:58] Speaker 05:
Are you a party to that proceeding?

[00:25:01] Speaker 03:
Your Honor, we don't personally represent the... No, is your... I believe... I just don't know how these proceedings... I believe they were.

[00:25:08] Speaker 03:
I believe they were.

[00:25:09] Speaker 03:
I think there was some proceeding that took place, and of course... But there was no adjudication that the claim was falsely filed, obviously.

[00:25:17] Speaker 03:
I don't know the answer to that, Your Honor.

[00:25:19] Speaker 03:
I don't know.

[00:25:20] Speaker 05:
I know that was a defense that was raised.

[00:25:22] Speaker 05:
Presumably he wouldn't have gotten benefits if the claim was falsely filed.

[00:25:26] Speaker 03:
That's possible.

[00:25:26] Speaker 03:
I know the defense was raised.

[00:25:28] Speaker 03:
I don't know.

[00:25:28] Speaker 05:
Possible.

[00:25:29] Speaker 05:
Really?

[00:25:29] Speaker 05:
Can you get benefits for falsely filed claims?

[00:25:32] Speaker 03:
I'm assuming not.

[00:25:33] Speaker 03:
But I know that that was in the complaint itself that says that the counsel for the defense had represented that the reason that there was a determination was because it was a false report and falsely filed.

[00:25:43] Speaker 05:
Never saw any review of the board determination.

[00:25:45] Speaker 05:
I'm sorry.

[00:25:48] Speaker 05:
He did not.

[00:25:50] Speaker 05:
He did not.

[00:25:51] Speaker 05:
The company did not either.

[00:25:52] Speaker 03:
The company, I don't believe they did.

[00:25:54] Speaker 03:
As far as I know, I don't believe they did either.

[00:25:57] Speaker 00:
Can I ask about the exclusivity preemption argument?

[00:26:03] Speaker 00:
Because the exclusivity provision in the Longshore Act, which is 905A, talks about the liability of an employer prescribed in section 904.

[00:26:15] Speaker 00:
So 948A is not 904.

[00:26:20] Speaker 00:
So it doesn't seem like there's any express preemption unless I'm missing something because the exclusivity provision just doesn't reach 948A or claims like 948, retaliation type of claims like 948A.

[00:26:34] Speaker 03:
Correct.

[00:26:34] Speaker 03:
I think we have to look to the DBA, which incorporates the Longshore-Harvard Welfare Miscompensation Act and its provision.

[00:26:40] Speaker 03:
The DBA itself, in 1651C, has a very broad exclusivity provision that extends the benefits that employees would receive.

[00:26:48] Speaker 03:
It's actually narrower.

[00:26:49] Speaker 00:
I think it's narrower because it talks about under the work with its compensation laws.

[00:26:53] Speaker 03:
Actually, if the court refers to Ross v. Dyncorp, there is, when they describe 1651C, and I'm happy to provide the pin site, they actually say that it's exclusive without regard to the work and compensation loss of the state or jurisdiction.

[00:27:08] Speaker 03:
I'm happy to provide the pin site for that.

[00:27:12] Speaker 00:
What are they talking about?

[00:27:13] Speaker 00:
That's not the decision of this court.

[00:27:14] Speaker 03:
I'm sorry?

[00:27:14] Speaker 03:
That's not the decision of this court.

[00:27:16] Speaker 03:
The D.C.

[00:27:16] Speaker 03:
Circuit?

[00:27:17] Speaker 05:
Ross v. Dyncorp?

[00:27:19] Speaker 05:
Your site is a sub-site.

[00:27:21] Speaker 03:
The Ross Vutine Corp.

[00:27:30] Speaker 03:
I don't have it in front of me at the moment, I'm happy to look it up, but it does say on page 351 to 352 that the DBA provides the sole source of liability for employers without regard to the Workman's Compensation Law.

[00:27:43] Speaker 00:
I think it's a district court, a DC district court.

[00:27:46] Speaker 00:
Yes, yes.

[00:27:47] Speaker 00:
It might have said that, but I'm just reading the statute and

[00:27:53] Speaker 00:
the statute speaks in terms of liability shall not be exclusive, but then it goes on to say, under the workman's compensation law of any state, which seems quite narrow.

[00:28:05] Speaker 00:
In fact, as I read Brink, what happened is that you start with the DBA exclusivity provision, and then you incorporate the Longshore Act exclusivity provision as a way of expanding the scope of exclusivity.

[00:28:18] Speaker 00:
And then the question for us is,

[00:28:20] Speaker 00:
as expanded when you double up, when you get both the exclusivity under 1651A and the exclusivity under 905, do you go far enough to encompass the claims in this case?

[00:28:31] Speaker 03:
I believe you do.

[00:28:32] Speaker 00:
And I guess the question is how does it cover 948A or 948A style claims like retaliation claims when

[00:28:39] Speaker 00:
both when 1651A speaks in terms of workers' compensation laws, which doesn't seem to have to do with that, and then 905A talks about liability described in section 904, and then it says, except that if an employer fails to secure payment of compensation as required by this chapter, which also speaks in terms of what an employer does under workers' compensation scheme, they all seem bound up in the administration of workers' compensation benefits, and this seems something that's

[00:29:08] Speaker 00:
arguably different from that because it has to do with an action that comes along later, which is a retaliation action.

[00:29:14] Speaker 03:
Well, I think the Supreme Court actually looked at it and said there was exclusivity given looking at not with not with respect to retaliation.

[00:29:21] Speaker 03:
Well, the claim in Brinkwood also 948A.

[00:29:22] Speaker 00:
No, no.

[00:29:23] Speaker 00:
Well, the 948A claim I get, because first of all, the other side is saying they're not even making a 948 claim.

[00:29:28] Speaker 00:
But even assuming they are, I understand that there's an exhaustion argument as to 948A.

[00:29:32] Speaker 00:
That I understand.

[00:29:34] Speaker 00:
I guess the question is, if you have a state law claim that's making retaliation-like allegations,

[00:29:41] Speaker 00:
does that claim come within the fold of preemption by virtue of the exclusivity provisions?

[00:29:46] Speaker 00:
And that's where I'm not entirely clear as to how it would, because the exclusivity provisions speak in terms of the administration and workers' compensation benefits.

[00:29:54] Speaker 00:
And retaliation just seems like it's something else.

[00:29:58] Speaker 00:
You don't ordinarily think about a workers' compensation benefit scheme as encompassing retaliation.

[00:30:03] Speaker 00:
You don't have the employer paying out benefits in order to deal with retaliation.

[00:30:07] Speaker 00:
You have the employer paying out benefits to deal with on-the-job injury.

[00:30:10] Speaker 03:
I think in that circumstance, we look at the legislative intention of the DBA.

[00:30:14] Speaker 03:
What was the DBA created for?

[00:30:15] Speaker 03:
The DBA was created to provide benefits to civilian employees, which Mr. Sickle and Mr. Elliott were civilian employees at the time, working for government contractors and military installations overseas.

[00:30:25] Speaker 03:
Overseas, there are no state remedies.

[00:30:27] Speaker 03:
There are no remedies.

[00:30:28] Speaker 03:
There was no benefit without the DBA.

[00:30:31] Speaker 03:
There was no federal or state remedies available to those employees who were injured on the job or retaliated against or denied benefits.

[00:30:37] Speaker 03:
The DBA extended the Longshore Harbor Workman's Compensation Act to them and

[00:30:43] Speaker 03:
contractors, including the ones that we have here, are paying millions, upwards of millions of dollars into this DBA.

[00:30:49] Speaker 03:
Why?

[00:30:49] Speaker 03:
Because this quid pro quo, like Judge Rogers said.

[00:30:51] Speaker 00:
Just one thing, then.

[00:30:52] Speaker 00:
That's not express preemption.

[00:30:54] Speaker 00:
So the argument that you're making now isn't under the terms of the exclusivity provisions.

[00:30:59] Speaker 00:
It's something beyond.

[00:31:01] Speaker 00:
It may be an argument, but it's not an argument about express preemption, right?

[00:31:04] Speaker 03:
We make several arguments, as Judge Brown Jackson did.

[00:31:07] Speaker 03:
We think the language expressly says it's exclusive.

[00:31:10] Speaker 03:
But even if you don't agree with that, we would say there's at least field preemption.

[00:31:13] Speaker 00:
The language says it's expressly exclusive, but the question is expressly exclusive as to what.

[00:31:18] Speaker 00:
And it just seems like the language itself doesn't cover this.

[00:31:22] Speaker 00:
There may be other principles that kick in under your view that expand it.

[00:31:26] Speaker 00:
you know, conflict preemption, something like that.

[00:31:29] Speaker 00:
But in terms of express preemption, I don't read the exclusivity provisions to cover this, and I don't read Brink as having held that it covers this.

[00:31:38] Speaker 03:
Correct, but Brink did hold, given the similar 948A claims, that other claims that were brought that were dependent on that claim, which is like the claims that we have here, are also preempted by the DA.

[00:31:49] Speaker 00:
But I don't think they're like the claims that we have here, because I didn't see that in Brink there was any state law claim that spoke in terms of retaliation.

[00:31:58] Speaker 00:
I thought they were all state law claims that had to do with the dissemination of benefits, of workers' comp benefits.

[00:32:04] Speaker 00:
and that the scheme had gone awry and workers' comp benefits weren't being paid out in the right way.

[00:32:08] Speaker 00:
But it didn't have to do, there was no state law analog, at least we didn't discuss it in our opinion, what's being asserted here, which is a state law grounded claim of retaliation.

[00:32:22] Speaker 03:
Well, I see I'm running out of time, but let me conclude by going back to the original point is they fashion their complaint as 948 claims.

[00:32:28] Speaker 03:
So they can't have the separate retaliation claim.

[00:32:30] Speaker 03:
They are saying we are subject to the DBA.

[00:32:32] Speaker 03:
We get benefits under the DBA.

[00:32:35] Speaker 03:
They cannot contradict that and abandon that because, oh, wait, maybe there's something

[00:32:39] Speaker 00:
I don't know why they can't, because they can say, they can say, we have a 948A claim.

[00:32:45] Speaker 00:
That 948A claim might have all kinds of problems associated with it, including that, as your opponent has already acknowledged, they didn't go through the normal procedures for a 948A claim, so under brink, under the exhaustion part of brink.

[00:32:57] Speaker 00:
they're out under the 948A claim.

[00:32:59] Speaker 00:
But they could still have a state law claim that is grounded in the same sorts of stuff that's bound up under 948A claim, i.e.

[00:33:05] Speaker 00:
retaliation and unfair action by the employer in response to somebody who's trying to get benefits.

[00:33:11] Speaker 00:
Brink doesn't tell us that that's preempted.

[00:33:14] Speaker 03:
And I would agree with the district court, which looked at it both ways.

[00:33:17] Speaker 03:
Either they are bringing a 948A claim or they're not under either scenario because this backdrop.

[00:33:23] Speaker 00:
I guess I'm saying they could be doing both.

[00:33:25] Speaker 00:
It doesn't seem it has to be an either or provision principle.

[00:33:29] Speaker 00:
They could say, I'm bringing a 948A claim.

[00:33:31] Speaker 00:
Maybe that 948A claim is out because of a failure of exhaustion.

[00:33:35] Speaker 00:
And then they could say, well, but I'm not limiting myself to an un-48A claim.

[00:33:38] Speaker 00:
I'm also bringing state law claims that are effectively alleging unfair action based on retaliation.

[00:33:45] Speaker 00:
And the argument as to those is they're not preempted because the exclusivity provisions just don't cover those.

[00:33:52] Speaker 03:
And we would submit that the DBA is very different than other statutes that may allow the alternative cleaning and that there's no election of remedies.

[00:33:57] Speaker 03:
You have to go through the Department of Labor if you're bringing a claim that's either grounded in the title as a 948-day DBA action or grounded in that.

[00:34:08] Speaker 03:
We would submit that the express language is broad enough to encompass that.

[00:34:13] Speaker 03:
And even if not, that legislative intent of the DBA was to extend immunity and predictability and outcomes to employers who are paying millions of dollars into this insurance for employees who are injured overseas.

[00:34:25] Speaker 04:
All right.

[00:34:25] Speaker 04:
Thank you.

[00:34:26] Speaker 03:
Thank you.

[00:34:30] Speaker 04:
All right.

[00:34:30] Speaker 04:
We'll give you a couple of minutes.

[00:34:32] Speaker 01:
Thank you, Your Honor.

[00:34:38] Speaker 01:
To the point that Judge Millett brought up about Mr. Sickle, he filed no report.

[00:34:45] Speaker 01:
He had a job as a medic and he had to fill out reports as part of that job if somebody came to the medic's office with an injury, even if it wasn't work related.

[00:34:54] Speaker 01:
They handed out medications and so on.

[00:34:56] Speaker 01:
So he had to fill out a report.

[00:34:57] Speaker 01:
That report existed.

[00:34:58] Speaker 01:
He didn't create it for a case.

[00:35:00] Speaker 01:
He did fax it over to Mr. Elliott, but there was no claim filed at that time.

[00:35:04] Speaker 01:
So he had nothing to do with the process.

[00:35:07] Speaker 01:
And there was never a hearing before a judge, and there was never a hearing before a board.

[00:35:10] Speaker 01:
There was an informal conference, as they call it, before the Office of Workers' Compensation Programs.

[00:35:17] Speaker 01:
And the way that these cases work, you file in New York, and then it gets sent out to the various places in the country and districts that are nearest to where the claimant lives.

[00:35:26] Speaker 01:
And this went down to the Longshore office in Houston.

[00:35:29] Speaker 01:
So there was a telephone call about the case.

[00:35:32] Speaker 01:
The employer and the carrier did not oppose benefits at that point.

[00:35:36] Speaker 01:
So there was no assertion of fraud in the case.

[00:35:38] Speaker 01:
There was comment to myself about it, which is noted in the complaint in this case.

[00:35:45] Speaker 01:
The comment was that we think he faked an injury.

[00:35:48] Speaker 01:
But then they didn't do anything about it.

[00:35:49] Speaker 01:
So there was no claim in the case about that.

[00:35:52] Speaker 01:
And Mr. Sickle never testified or came close to testifying.

[00:35:56] Speaker 01:
Likewise, Mr. Elliott was not qualified to continue working.

[00:36:00] Speaker 01:
He had a herniated disc, he had an MRI done, then he had back surgery.

[00:36:04] Speaker 01:
So he doesn't fall under 948A.

[00:36:06] Speaker 01:
And although perhaps inartfully drafted, the complaint is not trying to bring a 948A claim before the Department of Labor or using its provisions for remedies, but rather state law.

[00:36:18] Speaker 00:
I don't know about inartfully drafted, your complaint, this is page 19 of the Joint Appendix, count one, discrimination and retaliatory discharge, 33 USC 948A.

[00:36:32] Speaker 01:
I agree, Your Honor.

[00:36:33] Speaker 01:
It says that, but the intent is to utilize that statute as the basis of a public policy, not a cause of action that is in the U.S.

[00:36:44] Speaker 01:
District Courts with original jurisdiction.

[00:36:46] Speaker 01:
We didn't believe that then.

[00:36:47] Speaker 01:
I don't believe it now.

[00:36:48] Speaker 05:
The first prayer for relief on page 24.

[00:36:53] Speaker 05:
The judgment under Section 3A.

[00:36:57] Speaker 05:
You have to agree with the reality of what your comment says.

[00:37:00] Speaker 01:
It says that.

[00:37:01] Speaker 01:
I agree.

[00:37:02] Speaker 01:
And if this is reversed or remanded, we certainly will ask to amend so that we make it clear we're not trying to proceed under a law that doesn't provide for original jurisdiction before the Article III courts.

[00:37:15] Speaker 01:
So that was not our intent.

[00:37:16] Speaker 01:
Our intent was to bring alternative claims under state law based upon an express policy of the United States.

[00:37:24] Speaker 01:
Um, I think that the discussion about what's the basis jurisdiction?

[00:37:29] Speaker 05:
I'm sorry.

[00:37:32] Speaker 05:
Could you repeat that?

[00:37:35] Speaker 01:
We had diversity jurisdiction, I believe.

[00:37:41] Speaker 01:
I'd have to go back and look at the playground.

[00:37:44] Speaker 01:
I cannot honestly recall the basis of jurisdiction.

[00:37:48] Speaker 01:
There was a challenge to the jurisdiction, and that was set aside.

[00:37:52] Speaker 05:
That was a personal jurisdiction, wasn't it?

[00:37:54] Speaker 01:
I think there was a personal jurisdiction.

[00:37:56] Speaker 01:
That's correct, it was personal.

[00:38:01] Speaker 01:
The conflict preemption that the district court also relied upon is inappropriate because there is no conflict.

[00:38:08] Speaker 01:
Again, as I noted to the court, all of the causes of action that exist in federal law for employees who happen to be injured on the job overseas,

[00:38:17] Speaker 01:
such as ADA, Title VII, the Jones Act, other, other acts that one can bring even when there's an existing longshore or DBA case, these can often come into conflict.

[00:38:29] Speaker 01:
So in the Title VII case, you could have a personal injury that happened because somebody was retaliated against and sexually harassed, as I have a client like that.

[00:38:38] Speaker 01:
She has a DBA case, we just settled it.

[00:38:40] Speaker 01:
We also have a Title VII claim pending in federal court.

[00:38:43] Speaker 01:
That court can make a decision that, no, she wasn't retaliated against.

[00:38:46] Speaker 01:
No, it wasn't valid.

[00:38:47] Speaker 01:
No, she didn't really suffer these things.

[00:38:50] Speaker 01:
DBA can say the opposite.

[00:38:52] Speaker 01:
This happens all the time.

[00:38:53] Speaker 01:
You have social security disability determinations of total disability that differ in standards from those in the DBA, and yet those can coexist in the same case for the same injuries.

[00:39:03] Speaker 01:
So I believe that Your Honors have adequately addressed this issue of conflict and field preemption and expressed preemption

[00:39:13] Speaker 01:
This statute simply does not preempt the claims of common law, contract, or wrongful discharge in this case.

[00:39:20] Speaker 01:
And the basic unfairness of the ruling below is that Mr. Elliott could not proceed under 948A because he did not qualify.

[00:39:29] Speaker 01:
And also, Mr. Sickle, who had no remedy because there was no compensation claim that he had and he was not testifying or about to testify within any reasonable meaning of the term.

[00:39:40] Speaker 01:
So the court should reverse and give them a trial on the merits because the claims here are completely outside the ambit of the DBA.

[00:39:49] Speaker 01:
Thank you, Your Honor.

[00:39:49] Speaker 04:
Thank you.

[00:39:50] Speaker 04:
We'll take the case under advisers.